Director of Public Prosecutions v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0133

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
STATE OF VICTORIA & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2025
DATE OF JUDGMENT:	21 March 2025
ORIGINATING PROCESS:	Reservation of proceeding under s 17B(2) of the Supreme Court Act 1986
MEDIUM NEUTRAL CITATION:	[2025] VSCA 41

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COURTS AND JUDGES – Jurisdiction – Application to vary suppression orders – 62 suppression orders made by Supreme Court, County Court, Magistrates’ Court and Coroners Court – Orders made before and after commencement of Open Courts Act 2013 – Order sought by Director of Public Prosecutions adding proviso to orders facilitating prosecutorial duty of disclosure and use of disclosed material in subsequent appeals – Jurisdiction of Supreme Court to make order – Similar order made by consent in separate proceeding – Consent order requiring only very slight inquiry into jurisdiction – Consent order not determinative of jurisdiction – Conferral of unlimited jurisdiction by s 85 of the Constitution Act 1975 empowering Supreme Court to vary suppression orders by Victorian courts made before and after commencement of Open Courts Act 2013 – Supreme Court empowered to make order sought.

COURTS AND JUDGES – Suppression orders – Prosecutorial duty of disclosure – Whether statutory powers permit suppression orders limiting prosecutorial duty of disclosure – Whether principle of legality requires reading down of powers by reference to right to fair trial – Suppression orders potentially supporting an accused’s right to fair trial while impinging on other accused’s right to fair trial – Suppression orders potentially serving interests of justice in ways conflicting with right to fair trial – Principle of legality does not assist construction of powers – Open to courts to make suppression orders limiting prosecutorial duty of disclosure.

COURTS AND JUDGES – Suppression orders – Risk of harm to specific individual – Material for disclosure already redacted for public interest immunity – Identity of individual already disclosed to many or all persons to whom material to be disclosed – Submissions directed towards suppression orders on global basis not showing why any specific suppression order remains necessary – Not established that order should be attenuated by provisions mitigating risk of harm to specific individual – Order made varying suppression orders by adding proviso facilitating prosecutorial duty of disclosure and use of disclosed material in subsequent appeals.

Constitution Act 1975, s 85; Supreme Court Act 1986, ss 17B(2), 18(1)(c); County Court Act 1958, s 80(1)(c); Magistrates’ Court Act 1989, s 126(2)(c); Open Courts Act 2013, ss 7, 17, 18, 22.

Federated Engine Drivers’ & Firemen’s Association of Australasia v The Broken Hill Pty Co Ltd (1911) 12 CLR 398, referred to; Chairperson of the Royal Commission into the Management of Police Informants v Director of Public Prosecutions (2020) 61 VR 490, applied.

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Counsel
Plaintiff:	Mr P Doyle SC with Mr G Buchhorn
First and Third Defendants:	Ms S Maharaj KC with Mr J Bayly
Thirtieth Defendant	Ms E Clark
Solicitors
Plaintiff:	Ms A Hogan, Solicitor for Public Prosecutions
First and Third Defendants:	Mr M Hocking, Victorian Government Solicitor
Thirtieth Defendant	Fayman Lawyers

BEACH JA
MCLEISH JA
KENNEDY JA:

Background

The Director of Public Prosecutions commenced this proceeding in the Trial Division seeking an order varying a large number of non-publication and suppression orders made by the Supreme Court, the County Court, the Magistrates’ Court and the Coroner’s Court. The purpose of the relief sought is to ensure that the Director is able to disclose information to certain persons potentially affected by the use of Ms Nicola Gobbo as a police informer, and that those persons may use such information in any appeal from their convictions.
The Royal Commission into the Management of Police Informants delivered its final report on 30 November 2020 into ‘cases [that] may have been affected by the conduct of Ms Gobbo as a human source’.[1] The Commission found that the convictions or findings of guilt of 1,011 people may have been affected by the use of Ms Gobbo as a human source by Victoria Police.[2] Of those people, 124 were identified as potentially having been affected ‘in a more specific way’.[3]
[1]Royal Commission into the Management of Police Informants (Final report, 30 November 2020) 7.
[2]Ibid 17.
[3]Ibid 18.
An agreement was subsequently made between the Director and the Chief Commissioner of Victoria Police for the confidential provision of material potentially relevant to the convictions of those 124 people.
The Chief Commissioner and his legal representatives assessed relevant material and collated that material in relation to each person into a package of documents which was then redacted for public interest immunity. The Chief Commissioner then provided the packages to the Director for assessment as to whether extant suppression orders might prevent disclosure to any of the 124 persons.
The Director has determined that the prosecutorial duty of disclosure requires disclosure in respect of convictions or findings of guilt in respect of each of the 124 persons.
The Director is aware of 62 suppression orders which it is said may have the effect of restraining his ability to disclose to the 124 affected persons some of the material which may be relevant to any application by them for leave to appeal against conviction. The relevant suppression orders include orders prohibiting publication of the identity of a party, witness or other person, orders prohibiting publication of particular information, evidence or submissions, and orders which impose a blanket prohibition on reporting a proceeding.
In addition, some of the suppression orders restrict the disclosure of information ‘derived from’ a proceeding. The Director considers that, without considerable work, it is not possible to ascertain whether some or all of the information in the disclosure packages is ‘derived from’ any one or more specific proceedings. The disclosure packages are voluminous and, in some cases, comprise several thousand documents. In order to avoid undertaking the sizeable task that would be involved in identifying the material ‘derived from’ a proceeding, the Director has assumed that all the material in the packages is subject to a restriction on disclosure by virtue of one or more of the suppression orders.
An earlier proceeding was commenced in the Trial Division by which the Director sought to vary the suppression orders relevant to one of the affected persons, Abdullahi Radi. One reason for commencing that proceeding was to test whether the suppression orders could be varied in the terms sought by the Director. As it transpired, however, the matter was resolved by consent. On 9 March 2023, McLeish JA made orders in the inherent and supervisory jurisdiction of the Supreme Court amending the suppression orders relevant to Mr Radi by adding the following proviso to each of them:
PROVIDED THAT nothing in this order prevents the disclosure of information by the Director of Public Prosecutions for Victoria to legal representatives for Abdullahi RADI, or the use of that material by the legal representatives for Abdullahi RADI in any subsequent appeal proceeding commenced under the Criminal Procedure Act 2009.
In the present proceeding, the Director seeks to vary the suppression orders in terms similar to those ordered in the Radi proceeding, to enable the Director to disclose to the 124 affected persons information which might be affected by an extant suppression order, and to enable the use of such material by the affected persons in any appeal commenced by them. The orders sought differ from those in Radi, in so far as it is sought to enable disclosure to, and use by, the 124 persons themselves, and not merely their legal representatives. Specifically, the Director seeks an order varying each of the relevant suppression orders to include the following proviso:
PROVIDED THAT nothing in this order prevents the disclosure of information by the Director of Public Prosecutions for Victoria to potentially affected persons whose convictions may have been affected by the use of Ms Nicola Gobbo as a police informer, and the use of that material by potentially affected persons in any subsequent appeal proceeding commenced under the Criminal Procedure Act 2009 (Vic).
We take it as implicit that this variation would permit the use of the material in any application for leave to appeal, and any application for leave to bring a second or subsequent appeal, and that it is not to be understood as confined to an appeal consequent upon the grant of such leave. Otherwise, the variation would be largely, if not wholly, nugatory. The same observation applies to the order made in Radi.
The Director identified seven institutional bodies[4] and 76 other persons as defendants, the latter being persons who may have a potential interest in the proceeding by virtue of being defendants named in one or more of the subject suppression orders, or having been a party to the proceeding in which one or more of those orders was made. Most of the non-institutional defendants have been joined to the present proceeding.
[4]The State of Victoria, the Commonwealth Director of Public Prosecutions, the Chief Commissioner of Victoria Police, the County Court, the Magistrates’ Court, the Coroners Court and the Commissioner of the Australian Federal Police.
The Director seeks to vary the subject suppression orders collectively, even though not all orders affect each defendant. It is submitted that varying the orders individually would involve considerable work, significant cost, and further delay in the provision of information to relevant persons.
On 1 November 2024, by way of written submissions, the Director requested that the proceeding be reserved for consideration by the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986. The basis for the request was that the legal questions in the case are complex, the application does not require the determination of any significant question of fact, there is a strong likelihood of an appeal by an unsuccessful party, as one defendant (by pseudonym, Mr Cooper) had already foreshadowed in his written submissions, and because any appeal in the proceeding would further delay the Director’s discharge of his disclosure obligations. The Chief Commissioner adopted the Director’s submissions in this regard.
On 18 November 2024, McLeish JA reserved the proceeding for the consideration of the Court of Appeal, pursuant to s 17B(2) of the Supreme Court Act 1986.
Of the 74 defendants in the proceeding, only four took an active role, being the Chief Commissioner, the 12^th defendant (by pseudonym, Mr Bickley), the 30^th defendant (Mr Cooper) and the Commissioner of the Australian Federal Police. In the days prior to the hearing of the substantive matter, Mr Bickley and the Commissioner indicated that they no longer wished to take any part in the proceeding. As a result, the active parties are the Director as plaintiff, the Chief Commissioner of Victoria Police and Mr Cooper.
The parties filed a number of affidavits, the principal ones being:
(a)confidential affidavits of Eli Joseph Fryar sworn 22 August 2023 and 15 December 2023, filed by the Director;
(b)the confidential affidavit of Superintendent Jaclyn Bain Urquhart sworn 28 March 2024, on behalf of the Chief Commissioner, filed by the Chief Commissioner; and
(c)the confidential affidavit of Jordana Michelle Fayman affirmed 6 February 2024 and the affidavit of Ms Fayman affirmed 25 October 2024, filed by Mr Cooper.

Jurisdiction

Before turning to the submissions of the parties and identifying the issues to be resolved, it is convenient to address the source of the Court’s power to make the order sought by the Director. It will be recalled that it had been intended that Radi would amount to a test case on this question.
This issue was not, as some submissions appeared to suggest, resolved by the making of the consent order in Radi. It is true that the Court in Radi can be taken as having satisfied itself that it had jurisdiction to make the orders sought by consent. While jurisdiction cannot be conferred by consent, however, the level of scrutiny a court applies to the question of jurisdiction when orders are made by consent is less than when jurisdiction is in issue between the parties.[5] In a consent matter, ‘very slight inquiry may be adequate’.[6] The finding of jurisdiction by a single judge in Radi would not, in any event, bind this Court.
[5]Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2^nd ed, 2020) 38–9.
[6]Federated Engine Drivers’ & Firemen’s Association of Australasia v The Broken Hill Pty Co Ltd (1911) 12 CLR 398, 428 (Barton J).
We therefore turn to address the issue of jurisdiction. No party submitted that the Court lacked jurisdiction to make the order sought. We consider, for the reasons that follow, that the Court plainly has the requisite jurisdiction.
In Chairperson of the Royal Commission into the Management of Police Informants v Director of Public Prosecutions,[7] the Chairperson of the Royal Commission sought orders varying non-publication orders made by the County Court and the Magistrates’ Court before the commencement of the Open Courts Act 2013 (‘the OCA’).[8] The orders were sought in order to enable the exchange and receipt of final submissions before the Commission, and to facilitate publication of the Commission’s final report.
[7](2020) 61 VR 490 (‘Second Royal Commission case’).
[8]Ibid 499 [30] (Beach, McLeish and Weinberg JJA).
This Court held that the Supreme Court had jurisdiction to vary or revoke suppression orders made by the County Court and the Magistrates’ Court, whether those orders were made before or after the commencement of the OCA. The Court identified the source of its jurisdiction to do so as the conferral of ‘unlimited jurisdiction’ in s 85 of the Constitution Act 1975.[9]
[9]Ibid 504–5 [52]–[54].
The same reasoning applies to orders made by the Coroners Court. The power of the Supreme Court to vary its own orders is not in doubt.[10]
[10]Ibid 504 [51].
It is clear, therefore, that the Court has jurisdiction to vary suppression orders made by Victorian courts, whether made before or after the commencement of the OCA. Although the Court’s observations as to orders made after the commencement of the OCA were obiter dicta, it has not been suggested that there is any reason to doubt their correctness.[11] In particular, nothing in the OCA purports to limit the ‘unlimited jurisdiction’ conferred by s 85 of the Constitution Act. For example, the fact that s 15 of the OCA provides a mechanism for review of those orders falling within the definition of ‘suppression order’ does not imply that this is the exclusive source of power to conduct such a review. If there were any doubt on that score, s 85 itself makes it clear that any law can only have the effect of limiting the Supreme Court’s jurisdiction if it states that intention expressly and not merely by implication: s 85(5)(a). The OCA contains no such statement.
[11]Five of the orders sought to be varied in the present case were made after the commencement of the OCA on 1 December 2013.

Effect of orders on prosecutorial duty of disclosure

The Chief Commissioner raises as a preliminary issue the question whether the orders sought to be varied operate to restrict the Director from disclosing information pursuant to the prosecutorial duty of disclosure, or to restrict the subsequent use of that information by the recipient. The Chief Commissioner submits that the suppression orders do not do either of those things, such that the relief sought is not necessary for the discharge of the duty of disclosure. He acknowledges that this question has not been decided and submits that, if the Court is minded to make the order sought by the Director, it should be specified that it is made for the avoidance of doubt. The Chief Commissioner proposes the following form of order:
For the avoidance of doubt, nothing in this order prevents the duty of disclosure [sic] to potentially affected persons whose convictions may have been affected by the use of Ms Nicola Gobbo as a police informer, and the use of that material by potentially affected persons in any subsequent appeal proceeding commenced under the Criminal Procedure Act 2009 (Vic).
The Chief Commissioner’s argument is premised on treating the prosecutorial duty of disclosure as an integral element of the right to a fair trial.[12] It is then submitted that, applying the so-called principle of legality, legislation will only be construed as limiting that right if that effect is made clear by express words or by necessary intendment.[13]
[12]Roberts v The Queen (2020) 60 VR 431, 446 [64] (T Forrest and Osborn JJA and Taylor AJA); Roberts v The Queen [2020] VSCA 277 [132] (T Forrest and Osborn JJA and Taylor AJA).
[13]X7 v Australian Crime Commission (2013) 248 CLR 92, 132 [87] (Hayne and Bell JJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, 381–2 [67] (Gageler J); Lee v New South Wales Crime Commission (2013) 251 CLR 196, 310 [314] (Gageler and Keane JJ).
The next step in the Commissioner’s argument is that the statutes providing for the making of suppression orders contain nothing in their objects, terms or context to indicate that they intend to impinge on the right to a fair trial by permitting orders to be made which impede the discharge of the prosecutorial duty of disclosure. On that basis, it is said that the obligation to make disclosure is not affected by the relevant legislation.
Likewise, it is submitted, the right of an accused (or convicted) person to use the disclosed information in their trial (or appeal) is intimately bound up with the right to a fair trial, and the right to use the information for that purpose is not affected by the legislation either.
The legislation in question consists of the Supreme Court Act 1986, the County Court Act 1958, the Magistrates’ Court Act 1989 and the OCA.[14] The first three Acts empowered the relevant court to make an order ‘prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding’.[15] Section 17 of the OCA empowers a court to make a ‘proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise’ of a report of the whole or any part of a proceeding or any information derived from a proceeding.
[14]The relief sought extends to one order of the Coroners Court, made under the OCA rather than the Coroners Act 2008.
[15]The provisions were Supreme Court Act 1986, s 18(1)(c); County Court Act 1958, s 80(1)(c); and Magistrates’ Court Act 1989, s 126(2)(c). The provisions were repealed by ss 45, 51 and 54 of a previous version of the OCA (No 58 of 2013).
In short, the Chief Commissioner’s argument is that, by application of the principle of legality, the reference to ‘publication’ of the whole or part of a proceeding, or of information derived from a proceeding, does not extend to the provision to a person of information in relation to a proceeding pursuant to the prosecutorial duty of disclosure, or to the use of the information in the trial of the person to whom it is disclosed, or any appeal from conviction. It is submitted that the suppression order provisions are not concerned with the question as to what material must be produced, or what material is immune from production, in accordance with that duty.[16]
[16]HT v The Queen (2019) 269 CLR 403, 431 [67] (Gordon J).

The Director contends that suppression orders have a protective purpose and too narrow a meaning of ‘publication’ may jeopardise that purpose. For example, leaving the present case aside, mere verbal communication of particular subject matter may undermine the protection of national security secrets or the safety of undercover police or third persons, all of which are potential grounds for making a suppression order. Therefore, the Director submits, mere dissemination of information to non-parties may constitute ‘publication’ for the purposes of the suppression order legislation, however that dissemination may occur, and suppression orders may be made to prohibit such dissemination. Where a suppression order applies, it is contended, the specific order overrides the general duty of disclosure.
The Director submits that the principle of legality does not point to any different result. He accepts that the duty of disclosure is a manifestation of the way in which a fair trial is ensured.[17] However, the right to a fair trial is case-specific, according to what fairness requires in the particular case.[18] It is submitted that the determination of the scope of the right in a given case requires consideration of the public interest.[19] The making of a suppression order may be consistent with a fair trial, and may be a means of ensuring that result.[20] The Director gives the example of national security interests relevant to an accused warranting a suppression order. Such an order might legitimately impinge on the fair trial right of a co-accused. Similarly, an accused’s right to a fair trial might be attenuated in a case where the identity of a witness could not be revealed to the accused on national security or other public interest grounds.
[17]Cannon v Tahche (2002) 5 VR 317, 339 [56] (Winneke P, Charles and Chernov JJA).
[18]Knight v Wise [2014] VSC 76 [36] (T Forrest J).
[19]DPP v Mokbel [2010] VSC 331 [161(3)] (Whelan J); R v Glennon (1992) 173 CLR 592, 612 (Brennan J).
[20]DPP v Williams (2004) 10 VR 348, 349 [5] (Cummins J).
The Director submitted that the matters relied on by the Chief Commissioner might bear on the construction of a specific suppression order, but do not sustain the narrow construction of the power to make a suppression order for which the Chief Commissioner contends.
In our view, the submissions of the Chief Commissioner are not persuasive. Both the duty of disclosure and the power to prohibit publication of information derived from a proceeding are apt to operate in aid of a fair trial. If disclosure of particular material to an accused person pursuant to the prosecutorial duty would impinge upon the fairness of the trial of some other person, their respective rights to a fair trial would clash. The other person in that situation may seek a suppression order to protect their own fair trial right. The Chief Commissioner’s submissions would deny the power of the court to make such an order, thereby resolving the contest in favour of the party seeking disclosure. It was not explained how principles of statutory construction, including the principle of legality, assist in resolving the conflict between two persons asserting their fair trial rights. Whether a wide or a narrow construction of the suppression order provisions is adopted, the right to a fair trial is impinged.
Publication may of course be prohibited for reasons other than the preservation of the right to a fair trial. The question whether such a prohibition prevails over the duty of disclosure involves competing aspects of the public interest. For example, publication might be prohibited on national security grounds, or because a statutory regime for witness protection or compulsory examination would be undermined by publication. There may be no inconsistency between the prosecutorial duty and the relevant public interest consideration, because the duty would not extend to disclosure of matters which are subject to public interest immunity or already prohibited from disclosure by statute. But there may also be cases where publication is suppressed of matters to which public interest immunity or statutory limitations do not attach. In any event, it is not apparent why the potential for aspects of the public interest to conflict in this way is to be resolved by concluding that the duty of disclosure necessarily prevails.
Alternatively, the interests of justice might well be thought best served by the making of an order addressing the specific issue so that the matter is put beyond doubt. It would not serve those interests if the power to suppress publication were to be circumscribed to prevent that being done.
We therefore conclude that there is statutory power to make a suppression order that will impinge on the performance of the prosecutorial duty of disclosure. It is not possible, without more detailed analysis of each individual order and the circumstances in which it was made, to decide whether the orders sought to be varied in the present case have that operation. The Director’s application is premised on the desirability of making orders varying the suppression orders as a whole, without descending to unnecessary granular analysis of each order. We are satisfied that it is appropriate to proceed as the Director contends.
Having rejected the Chief Commissioner’s argument, we are not attracted to adopting the alternative formulation of the order he has proposed. Although it is true that the relief sought by the Director is, at least potentially, not necessary in every instance (because there may be suppression orders that, on analysis, are properly understood as not impinging upon the duty of disclosure), if the Director’s arguments are otherwise accepted, the orders may be varied in the manner proposed by the Director and nothing would be gained by articulating the possibility that it may not have been necessary, in particular cases, to do so.
In reaching that conclusion, it should be made clear that we are not deciding whether any given order, on its proper construction, does or does not limit the prosecutorial duty of disclosure. That issue has not been agitated by any party. The arguments made by the Chief Commissioner in respect of the construction of the statutory powers to make suppression orders may, however, bear upon any future argument as to the scope of a specific order.

Sections 7 and 22 of the OCA

The Director drew attention to provisions of the OCA which have indirect relevance to this issue before the Court and ultimately do not bear on its resolution. It is convenient to refer to them for the sake of completeness.
Section 7 relevantly provides that the OCA ‘does not limit or otherwise affect’:
(a)the making of an order by a court that requires the disclosure of information in relation to a proceeding;
(b)any rule of law restricting the permitted use and disclosure of the information just referred to;
(c)the making of an order by a court regarding the admission of information into evidence; or
(d)the making of an order or decision by a court that conceals the identity of a person by restricting the way they are referred to in open court, restricts the way an event or thing may be referred to in open court, or prohibits or restricts access to a court file.
The first two aspects of the section are concerned with orders or decisions of courts (or tribunals) that require the disclosure of information in the course of, or in relation to, a proceeding. The obligation of disclosure is not dependent on the making of any such order or decision. Moreover, the ‘rules of law’ that are preserved by the second limb of s 7 are only those ‘restricting the permitted use and disclosure of information referred to’ in the first limb, namely information the disclosure of which is required by an order or decision of a court or tribunal.
The third aspect of s 7 is confined to the admission of evidence and is not presently relevant. The fourth and final aspect is confined to the way in which matters are dealt with in open court, and does not apply to any wider form of suppression. In any event, again, the duty of disclosure is not the product of any order or decision of a court.
As the Director submits, s 7 says nothing as to whether orders made under earlier legislation may limit or otherwise affect the matters identified. In any event, for the reasons just stated, s 7 does not carve out of a suppression order made under the OCA a power of the Director to make disclosure of information which is the subject of that suppression order.
Section 22 of the OCA relevantly provides that a ‘proceeding suppression order’ does not prevent a person from disclosing information in the course of performing functions or duties or exercising powers in a public official capacity in connection with the conduct of any proceeding. For present purposes, it may be assumed that the Director, or a Crown prosecutor, performs duties in a ‘public official capacity’ when complying with the prosecutorial duty of disclosure, and that the present case involves disclosure ‘in connection with the conduct of any proceeding’.
This provision applies only to ‘proceeding suppression orders’ which are orders made under s 17 of the OCA: see s 3. Moreover, it does not extend to any subsequent use of the information. While the provision may apply to some of the orders the subject of the Director’s present application, it therefore plainly does not apply to most of them, and it is silent on the ‘use’ aspect of the relief sought. In these circumstances, the exclusion in s 22 is not a substitute for the relief sought. To the extent that it may render that relief unnecessary in any given case, its terms would not be inconsistent with such relief.

Should the orders be varied?

No party submitted that, as a matter of principle, the orders should not be varied. Mr Cooper made submissions as to the course that should be taken in doing so, and contended that if the steps he advocated were not undertaken, the relief sought by the Director should be refused. But he accepted that, in principle, the suppression orders should be varied to accommodate the duty of disclosure.
We accept the Director’s submissions that the Court should exercise its power of variation to ensure that the prosecutorial duty of disclosure can be discharged notwithstanding the application, or potential application, of orders of the various courts concerned that would prohibit such disclosure.
No party has suggested that any specific suppression order was made with the duty of disclosure in contemplation. It would be surprising if it were otherwise. The orders were doubtless made principally having regard to the particular proceedings whose publication was suppressed, and not to address disclosure of information by prosecutors in respect of proceedings years, and often many years, into the future, including those brought by third parties. However, as already mentioned, it is not necessary to decide any question of construction of the relevant suppression orders in this proceeding.
It follows that we would also grant the relief sought in respect of use of the information for the purpose of appeal proceedings (and applications for leave required in order to bring such proceedings).[21]
[21]We note that the relief sought was framed in terms of ‘subsequent’ appeals, but we do not understand it to be intended that it cover only ‘second or subsequent’ appeals within pt 6.4 of the Criminal Procedure Act 2009.
Subject to addressing the matters raised by Mr Cooper, we will therefore grant the relief sought.

Matters specific to Mr Cooper

Mr Cooper made a number of submissions about his personal circumstances, supported by the confidential affidavit of Ms Fayman, his solicitor. That affidavit principally recites Ms Fayman’s instructions. Without canvassing specific matters in respect of which confidentiality is claimed, it suffices to say that Mr Cooper continues to have ‘real and significant concerns’ that disclosure to affected persons of information identifying him ‘has the potential’ to put him and his family ‘at risk’. In particular, Mr Cooper understands that some, but maybe not all, of the 124 affected persons are already aware of his name and relevant activities. He refers to a range of personal and private matters, and past conduct on his part, disclosure of which he is concerned could jeopardise his personal safety and that of other persons.
Against that background, Mr Cooper seeks that the Director provide to his legal representatives extracts of disclosure packages for other defendants, containing all unredacted references to Mr Cooper. He also seeks the use of a pseudonym in place of his name in all instances.
Mr Cooper seeks a further alternative form of variation to the suppression orders, in the following terms:
PROVIDED THAT nothing in this order prevents the disclosure of information by the Director of Public Prosecutions for Victoria to legal representatives for potentially affected persons whose convictions may have been affected by the use of Mr Nicola Gobbo as a police informer, and the use of that material by legal representatives for potentially affected persons in any subsequent appeal proceeding commenced under the Criminal Procedure Act 2009 (Vic), subject to a pseudonym being applied to all unredacted references in the information to the name [of Mr Cooper].
The provision in the variation order for a pseudonym would not be pressed by Mr Cooper if the material in question were to be released to Mr Cooper and the Director were to agree to the use of a pseudonym (which, counsel clarified, might need to be different from the one used in the Royal Commission).
Mr Cooper submits, and the other parties agree, that the onus is on him, as the party seeking to preserve the underlying orders, to persuade the Court that the orders remain necessary for one of the reasons now provided in s 18 of the OCA (relevantly including to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means, and to protect the safety of any person).[22]
[22]Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154 [106]–[107] (Whelan, Beach and Weinberg JJA).
The Director submits that the application is concerned with his ability to provide disclosure to the 124 persons, not with the content of that disclosure. The Director notes that Mr Cooper has not identified any orders that he contends must remain unvaried, or which might be breached if disclosure were made in accordance with the orders as sought to be varied in this proceeding. That is so, notwithstanding that Mr Cooper has received, in response to a subpoena, a copy of the material proposed to be disclosed to him by the Director (which is inevitably in less redacted form than that proposed to be disclosed to other affected persons, by virtue of being the material to be disclosed to Mr Cooper himself).
In relation to the use of a pseudonym, the Director relies on the affidavit of Superintendent Urquhart, filed by the Chief Commissioner. The Director submits that the identity of Mr Cooper under his real name is already well known by most, if not all, of the persons who will receive information containing a reference to him. It is said, moreover, that to use the pseudonym applied by the Royal Commission would enable persons to ascertain more information about Mr Cooper, from the Commission website, than would be disclosed pursuant to the prosecutor’s duty.
The Director also resists the use of a pseudonym on the asserted basis that it is claimed that it would take Victoria Police and/or the Office of Public Prosecutions several months, if not over a year, to properly review and extract from the disclosure packages the references to Mr Cooper by his real name. This submission is said to be based on experience in the Radi proceeding. While this estimate strikes us as remarkable, it is unnecessary to explore this matter further.
The Director submits that it is inappropriate to limit disclosure to legal representatives of the potentially affected persons, rather than the persons themselves. The Director submits that, if a variation were made in such limited terms, he would not be able to discharge his duty of disclosure in respect of any unrepresented persons, which would defeat the purpose underlying the application.
Finally, the Director submits that this Court has twice accepted that suppression orders should be varied so as to let the Royal Commissioner perform her functions and exercise her powers under the Inquiries Act 2014 and the Witness Protection Act 1991, unconstrained by those orders.[23] In neither case did the Court find it necessary to attach conditions to, or otherwise supervise, the exercise of the relevant powers. By analogy, it is submitted, there is no occasion for the Court to supervise the performance of the Director’s duty of disclosure in the present case.
[23]Ibid [123]–[124]; Second Royal Commission case (2020) 61 VR 490, 506 [63] (Beach, McLeish and Weinberg JJA).
It should be mentioned that the evidence relied on by the Director (relevantly, that of Superintendent Urquhart filed by the Chief Commissioner) describes in some detail a rigorous expert process of redaction for public interest immunity in the disclosure process. That task has included consideration of the personal safety of Mr Cooper and the need to protect the safety of witnesses, bearing in mind what was already known to the relevant intended recipient. It is stated, in particular, that personal private information relating to Mr Cooper has been redacted, including the names of his family and children, his medical information, his address and phone numbers. Senior Counsel for the Chief Commissioner confirmed the accuracy of this statement in open court, having obtained specific instructions on the point.
In our view, the submissions of Mr Cooper should not be accepted. In short, we are not persuaded that the safety concerns upon which he relies establish that the suppression orders should be continued in their current form. The material to be disclosed has been reviewed and redacted for public interest immunity. While his name is disclosed, it is not contested by Mr Cooper that most, if not all, of the persons who will receive information containing a reference to him already know his true name. The omission of personal private information from the proposed disclosure material offers further protection from the consequences of releasing personal information about which Mr Cooper is concerned.
It is not sufficient for Mr Cooper to point to specific matters that he says should not be disclosed, without linking those matters to the suppression orders. As the Director has submitted, this case is not about disclosure generally, but only disclosure that might be impeded by one or more of the identified suppression orders. For example, if a specific matter was not touched on by any of the identified suppression orders, the question whether the variation sought by the Director should be made would be unaffected by considering the possible consequences of disclosing that matter. Conversely, if a particular matter were protected from disclosure by legislative provision independently of any suppression order, that matter too would be irrelevant to the issues now under consideration.
In so far as Mr Cooper relies on his apprehension of danger if various specific information is disclosed, two further points may be made. First, the material relied upon by Mr Cooper consists of the disclosure package proposed to be provided to him. Given the matters just set out, that material is not a basis for inferring the extent of disclosure to other persons containing information about Mr Cooper, which the evidence establishes will be in a more redacted form than that provided to Mr Cooper himself.[24] Secondly, as already noted, the onus on Mr Cooper in this proceeding requires him to identify one or more suppression orders which are necessary for one of the purposes in s 18 of the OCA. Mr Cooper has made global submissions directed to the suppression orders as a whole, without attempting to establish that any specific order is necessary. This lack of specificity reinforces the insufficiency of the material as to necessity that is relied on.
[24]The affidavit of Ms Urquhart deposes to Mr Cooper having reviewed a second package, in the context of the Radi proceeding, which the Director proposes to disclose to certain persons other than Mr Cooper, and which contains more redactions than the package proposed to be disclosed only to Mr Cooper. Mr Cooper did not make any submissions contrasting the material in the two packages, including any variance between the redactions in them. In particular, he did not point to any unredacted part of the second package which supported the concerns he holds for his personal safety if the relief sought by the Director is granted.

We are also unpersuaded that the variation should be confined to legal representatives of the potentially affected persons. The making of the consent orders in Radi has no bearing on this issue. In circumstances where the evidence of the apprehension of danger by virtue of disclosure is limited as we have described, and given the acceptance that the potentially affected persons are already aware of Mr Cooper’s real name, it has not been shown that the risks should be mitigated by confining disclosure to legal representatives of those persons.

Conclusion

We will therefore make orders in the terms proposed by the Director.[25]
[25]Subject to removal of the term ‘subsequent’ from the phrase ‘subsequent appeal proceeding’: see n 21 above.

A final matter

One other matter should be mentioned. As indicated, an order has already been made varying the subject suppression orders in respect of Mr Radi. That order is in slightly different terms to that sought in the present proceeding, in particular by permitting Mr Radi’s legal representatives, rather than Mr Radi himself, to access and use the information. It is not clear, on the material before the Court, whether the suppression orders varied in respect of Mr Radi’s legal representatives are the same orders as the Director seeks to vary in this proceeding.
Mr Radi is the 66^th defendant. No submissions have been made as to his position. In the circumstances, we assume that the order sought in this proceeding should extend to him. The variation previously made will continue to operate, albeit that it may have no future work to do. But in case the parties wish to give further consideration to the position of Mr Radi, we will reserve liberty to apply in respect of any orders that a party may seek in respect of him.

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SCHEDULE OF PARTIES

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
and
STATE OF VICTORIA	First Defendant
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Second Defendant
CHIEF COMMISSIONER OF VICTORIA POLICE	Third Defendant
COUNTY COURT OF VICTORIA	Fourth Defendant
MAGISTRATES’ COURT OF VICTORIA	Fifth Defendant
CORONERS COURT OF VICTORIA	Sixth Defendant
(RCMPI PSEUDONYM MR AGRUM)	Seventh Defendant
(RCMPI PSEUDONYM POLICE OFFICER 1)	Eighth Defendant
NOEL ASHBY	Ninth Defendant
DAVID BARTLETT	Tenth Defendant
PHILLIP BATTICCIOTTO	Eleventh Defendant
(RCMPI PSEUDONYM MR BICKLEY)	Twelfth Defendant
CHRISTOPHER BINSE	Thirteenth Defendant
(RCMPI PSEUDONYM MR ANDREWS)	Fourteenth Defendant
JACQUES EL-HAGE	Fifteenth Defendant
(RCMPI PSEUDONYM MR GREGORY)	Sixteenth Defendant
EVANGELOS (ALSO KNOWN AS ANGELOS AND EVAN) GOUSSIS	Eighteenth Defendant
ABBEY HAYNES	Nineteenth Defendant
(RCMPI PSEUDONYM MR MCGRATH)	Twentieth Defendant
(RCMPI PSEUDONYM PERSON 12)	Twenty-First Defendant
(RCMPI PSEUDONYM PERSON 16)	Twenty-Second Defendant
ROB KARAM	Twenty-Third Defendant
ANTONIOS (ALSO KNOWN AS TONY) MOKBEL	Twenty-Fourth Defendant
HORTY MOKBEL	Twenty-Fifth Defendant
KABALAN MOKBEL	Twenty-Sixth Defendant
ZAHAROULA MOKBEL	Twenty-Seventh Defendant
MOHAMED ABDUL NAZEER	Twenty-Eighth Defendant
(RCMPI PSEUDONYM MR COOPER)	Thirtieth Defendant
LEIGH ROBINSON	Thirty-First Defendant
SHARON ROPA	Thirty-Second Defendant
(RCMPI PSEUDONYM MR THOMAS)	Thirty-Third Defendant
ROBERTA WILLIAMS	Thirty-Fourth Defendant
ANIL SURI	Thirty-Fifth Defendant
PASQUALE BARBARO	Thirty-Sixth Defendant
SAVERIO ZIRILLI	Thirty-Seventh Defendant
(RCMPI PSEUDONYM MR BOYD)	Thirty-Eighth Defendant
(RCMPI PSEUDONYM MR DUNLOP)	Thirty-Ninth Defendant
(RCMPI PSEUDONYM MR KING)	Fortieth Defendant
(RCMPI PSEUDONYM MR KELVIN)	Forty-First Defendant
(RCMPI PSEUDONYM MR KEARNEY)	Forty-Second Defendant
(RCMPI PSEUDONYM MR HASTINGS)	Forty-Third Defendant
(RCMPI PSEUDONYM MR NEWTON)	Forty-Fourth Defendant
(RCMPI PSEUDONYM MR COOPER’S RELATIVE)	Forty-Fifth Defendant
(RCMPI PSEUDONYM MR SATURN)	Forty-Sixth Defendant
(RCMPI PSEUDONYM RILEY STEVENSON)	Forty-Seventh Defendant
(RCMPI PSEUDONYM MR KHAN)	Forty-Eighth Defendant
(RCMPI PSEUDONYM MR THEODORE)	Forty-Ninth Defendant
AZZAM (ADAM) AHMED	Fiftieth Defendant
MARIJAN (MARK) BANDA	Fifty-First Defendant
JANETTE CANNIZZARO	Fifty-Second Defendant
ANTON CLAITE	Fifty-Third Defendant
PAUL DALE	Fifty-Fourth Defendant
GHAZWAN FARACHI	Fifty-Fifth Defendant
MICHAEL HADDAD	Fifty-Sixth Defendant
MATTHEW JOHNSON	Fifty-Seventh Defendant
ZYNAL KHAN	Fifty-Eighth Defendant
NOEL LAURIE	Fifty-Ninth Defendant
JAMES MAIN	Sixtieth Defendant
MICHAEL MANARITI	Sixty-First Defendant
DAVID MIECHEL	Sixty-Second Defendant
TOBY MITCHELL	Sixty-Third Defendant
COLLEEN O’REILLY	Sixty-Fourth Defendant
GEORGE PROIMOS	Sixty-Fifth Defendant
ABDULLAHI RADI	Sixty-Sixth Defendant
FADI SARKIS	Sixty-Seventh Defendant
FAYEZ FADI SARKIS	Sixty-Eighth Defendant
ANTONIO (TONY) SERGI	Sixty-Ninth Defendant
RASIM (SAM) TEZER	Seventy-Second Defendant
STEPHEN THORNEYCROFT	Seventy-Third Defendant
(RCMPI PSEUDONYM PERSON 3)	Seventy-Fifth Defendant

[2025] VSCA 41

21 March 2025